Government Still Says It Can't Be Sued for Snooping


I'm sovereign! And I'm immune!

The federal government is sticking to its guns and claiming that some violations of your rights are so super-secret that the government can't be sued for them. Specifically, if government agents listened in on your communications without a warrant, say federal lawyers, you shouldn't be allowed to seek redress in the courts bcause the U.S. government is protected against legal action by sovereign immunity. Even better, Congress is poised to reauthorize a law which explicitly legalizes such official intrusion.

Reports Wired:

A federal appeals court appeared troubled Friday by the Obama administration's arguments that the government could break domestic spying laws without fear of being sued — and that the government's argument might be correct, due to an oversight by Congress.

A two-judge panel of the 9th U.S. Circuit Court of Appeals heard an hour of oral arguments here by the government and a lawyer for two attorneys whom a federal judge concluded had been wiretapped illegally without warrants by the government.

Note that the courts have already found the wiretapping in question to be illegal. The argument is whether the federal government can be held accountable for its actions. The federal government says "no."

With all of this talk of secrecy and national security in place, the court win was a miracle of official incompetence. It came about only because the feds accidentally mailed two attorneys a classified document revealing that their conversations had been wiretapped. Such warrantless wiretaps were illegal at the time, but were later permitted by a 2008 amendment to the Foreign Intelligence Surveillance Act supported by, among others, then-Senator Barack Obama.

That amendment is up for reauthorization right now.

But if warrantless wiretaps were illegal at the time the plaintiffs were snooped upon, why the trouble with the lawsuit?

Judge Hawkins noted that the FISA law spells out that those who were illegally spied upon may seek monetary damages. But if Congress did not intend for the government to be sued, "it would make the remedy illusory," Hawkins said.

And that's the federal government's argument.

Justice Department attorney Douglas Letter told Judge Michael Daly Hawkins and M. Margaret McKeown, both President Bill Clinton appointees, that they should dismiss the case outright because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as sovereign immunity.

"We think the simplest way here is the sovereign immunity argument," Letter told the panel. He added that the aggrieved lawyers could sue individual government officials. But under that scenario, the government would declare the issue a state secret and effectively foreclose litigation.

"I'm trying to understand the government's overall position," Hawkins said. "The government's position is you can't sue the government, you can sue anybody else, but who those people are might be a state secret."

"Correct, your honor," Letter said moments later.

Letter also insisted that individual federal officials shouldn't be sued because "This is just wrong to do this to a federal official." If that sounds petty, the argument actually goes farther. EFF elaborates:

After a question from one judge, the government admitted to the Court that it would then invoke the "state secrets" privilege to stop even that case and also raised the specter of other immunities that would then apply to protect the individual defendants. The Justice Department essentially told the Court, "heads we win, tails they lose."

The federal government's overall argument is that there should be no recourse through the courts whatsoever if your private conversations are intercepted in the name of national security.

The Ninth Circuit judges may, ultimately, reject the federal government's arguments. So might another court — the U.S. Supreme Court is set to consider the constitutionality of the FISA amendments under which the feds are now conducting their snooping.

NEXT: Leaky White House, Paul Krugman Pwned, Frisky NYPD: P.M. Links

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. When there’s no negative personal consequences to state agents for bad acts, there’s every incentive to do whatever they want.

    1. Which is every incentive for bad actors to become state agents. A vicious circle, that.

      1. A circle yes, but lets not forget the fraud triangle.

    2. When we started putting tar on roads instead of politicians, that’s when we lost our way.

    3. There is the ballot box, however weak a consequence that is.

      1. Well, here in Florida, there’s nowhere in our ballot box to put the tar and feathers.

    4. Sovereign immunity means immunity for the sovereign (the government) from the peasants (YOU).

  2. “It came about only because the feds accidentally mailed two attorneys a classified document revealing that their conversations had been wiretapped.”


    You call these people tyrants, I call them slapstick comedians.

    1. With a lot of power.

      1. The most powerful tyrant/slapstick comedian. I’ll admit earthly tyrants aren’t as much fun.

    2. They just don’t know what went wrong. 🙁

    3. Or maybe it wasn’t an accident at all and the feds just wanted to get a judicial precedent saying that you can’t sue no matter what.

  3. Everybody together now:


  4. Serious question, aside from some noisy agitators at the ACLU, is Liberal America up in arms about Warrnatless Wiretaps in the era of Obama, or did that largely dry up and get relegated to libertarians after the Oh Eight elections?

    1. The other day I saw a car that had a Code Pink bumper sticker covered over by a KROQ bumper sticker.

      1. So priorities shift apace.

      2. Hmph, Code Pink attempted to fuck with the Cuban community in Miami.

        My personal rule, don’t fuck with people whose women are willing to throw down in a fight:…

      3. I used to drive past the AZ Democratic Party HQ every day. Faded and peeling antiwar bumper stickers next to newer Hillary bumper sticker next to brand-new Obama 2012 bumper sticker.

    2. Don’t be absurd, Paul.

    3. Bush’s fault!?

    4. Yes. There was this nationwide protest, called the Occupy movement, which protested the WoD, rendition, the drone attacks, war, Guantanamo, violations of civil liberties, runaway spending, and the general evasion by government of its constitutional limits.

      Wait, I think I got part of that wrong.

      1. protested the WoD, rendition, the drone attacks, war, Guantanamo, violations of civil liberties, runaway spending, and the general evasion by government of its constitutional limits.

        Sounds like another drunken night in my living room, shouting at my TV.

        1. Oh, that’s right, that was me, Occupying my den.

  5. I’m absolutely positive that the framers intended for the federal government to be completely unaccountable. All that “we the people” stuff was just window dressing.

    1. Why else would they have put that Commerce Clause in there?

      1. You know, I’ve been looking at a photograph of the original Constitution, and I think we’ve been misreading that. It’s the Commence Clause. As in let the games commence! Clearly, the Founders intended the Constitution to actually just be an enabling act, enabling the goodness of government to flow bountifully everywhere.

        1. But will they provide us with breads and circuses??

        2. You sure it wasn’t the “Comments Clause”, creating a giant Blog allowing lay people to spout off about stuff they know little about?

          1. Could be. Might also be the Cumming Clause.

            1. Really, that moldy old document could say anything. Do we really trust the translators who converted it from English to American?

  6. Once I was standing in a room smoking. I think this was at university, it has been a long time ago. Some guy walked in the room, saw me, and got a horrified look on his face. He exclaimed ” Hey you, you cant smoke in here!”
    I blew out a puff, held up the ciggarette and asked
    “Then what the fuck do you call this?”

    Cant sue, my ass.

  7. A nation of laws becomes sort or meaningless without redress.

    What is their argument for redress? Elections?

    Just wow. I need a passport….

Please to post comments

Comments are closed.